People v. Kailey

• Decision Date: 23 June 2014
• Docket Number: Supreme Court Case No. 13SA183
• Citation: 333 P.3d 89
• Parties: In Re: The PEOPLE of the State of Colorado, Plaintiff, v. Randy Steven KAILEY, Defendant.
• Court: Colorado Supreme Court

333 P.3d 89

In Re: The PEOPLE of the State of Colorado, Plaintiff,

v.Randy Steven KAILEY, Defendant.

Supreme Court Case No. 13SA183

Supreme Court of Colorado.

June 23, 2014

Original Proceeding Pursuant to C.A.R. 21, Jefferson County District Court Case No. 13CR164, Honorable Philip McNulty, Judge.

Attorneys for Plaintiff: Peter A. Weir, District Attorney, First Judicial District, Donna Skinner Reed, Chief Appellate Deputy District Attorney, Golden, Colorado.

Attorneys for Defendant: Douglas K. Wilson, State Public Defender, Rachel Oliver, Deputy Public Defender, Golden, Colorado.

En Banc

CHIEF JUSTICE RICE delivered the Opinion of the Court.

¶ 1 This suppression case presents an issue of first impression for this Court. In this original C.A.R. 21 proceeding, we examine the scope of the “psychologist-patient privilege”¹ provided in section 13–90–107(1)(g), C.R.S. (2013), vis-à-vis the “duty to warn” provided in section 13–21–117(2), C.R.S. (2014).² We hold that if a mental health treatment provider believes, using his or her professional judgment, that statements made by a patient during a therapy session threaten imminent physical violence against a specific person or persons—and accordingly trigger the provider's “duty to warn”—the patient's threatening statements are not protected by the psychologist-patient privilege.

¶ 2 Accordingly, we also hold that the trial court erred when it excluded threatening statements made by a patient to a mental health treatment provider on the grounds that they were barred by the psychologist-patient privilege. We thus make the rule absolute and remand for further proceedings consistent with this opinion.

I. Facts and Procedural History

¶ 3 In 1985, Randy Steven Kailey was charged with two counts of aggravated incest. After a jury trial, he was found guilty and ultimately sentenced to thirty-two years in the Sterling Correctional Facility (“Sterling”) in Sterling, Colorado.

¶ 4 In November 2012, Kailey met with Brian Willson, a psychologist candidate employed by the Colorado Department of Corrections (“DOC”), for a private therapy session at Sterling. At the outset of this therapy session, Willson reviewed an official DOC form with Kailey. This form provided that any statements Kailey made during the therapy session indicating that Kailey intended to harm himself or others would not be considered confidential and would be disclosed to the DOC. During his session, Kailey allegedly made several statements about witnesses who had testified against him during his trial. Willson considered these statements to constitute serious threats of violence.

¶ 5 Section 13–21–117(2) provides that “where the patient has communicated to [a] mental health [treatment] provider a serious threat of imminent physical violence against a specific person or persons,” a “duty to warn” arises. This duty is discharged when the provider makes reasonable and timely efforts to notify any person or persons specifically threatened, as well as notifies an appropriate law enforcement agency or takes other appropriate action, including but not limited to hospitalizing the patient. § 13–21–117(2)(b). Pursuant to his duty to warn, Willson submitted an “Incident Report” to the DOC describing Kailey's therapy session and quoting several of Kailey's alleged statements. In explaining why he submitted this report, Willson testified as follows: “According to what ... I understand as a duty to warn, and also what [the] DOC requires us to do, and the disclosure form, ... anything that's perceived as a threat to the facility or to the public is not considered confidential and needs to be reported.”

¶ 6 The People subsequently charged Kailey with retaliation against a witness, a class-three felony, pursuant to section 18–8–706, C.R.S. (2013).³ According to the People, Willson's Incident Report and his testimony formed the basis, in large part, for this charge.⁴ Kailey moved to exclude Willson's testimony, contending that Kailey's statements to were barred by the psychologist-patient privilege. That privilege provides that certain types of mental health treatment providers “shall not be examined without the consent” of the patient as to any communication made by the patient or advice given by the provider “in the course of professional employment.” § 13–90–107(1)(g).

¶ 7 After a hearing, the trial court issued an oral order granting Kailey's motion to exclude Willson's testimony. It found that the duty to warn statute serves different purposes than the psychologist-patient privilege, reasoning that the duty to warn is designed to enhance public safety, whereas the psychologist-patient privilege encourages patients to be candid with their therapists. Accordingly, the trial court found that even if a mental health treatment provider warns threatened individuals and notifies law enforcement regarding threatening statements made in the course of a therapy session, the testimonial privilege remains intact.

¶ 8 The People petitioned this Court under C.A.R. 21 for review of the trial court's order, contending that the trial court erred when it found that Willson's testimony was inadmissible under the psychologist-patient privilege. We issued a rule to show cause why the trial court's order should not be vacated.

II. Original Jurisdiction

¶ 9 Original relief pursuant to C.A.R. 21 is an extraordinary remedy that is limited both in purpose and availability. People v. Darlington, 105 P.3d 230, 232 (Colo.2005). Nevertheless, this Court exercises its original jurisdiction when the trial ruling in question may have a significant impact on a party's ability to litigate the merits of a controversy or when the normal appellate process would prove inadequate. People v. Casias, 59 P.3d 853, 856 (Colo.2002).

¶ 10 We have previously held that the exercise of original jurisdiction is warranted when the wrongful suppression of evidence would significantly hinder the prosecution's case. People v. Smith, 254 P.3d 1158, 1161 (Colo.2011); see alsoCasias, 59 P.3d at 856 (concluding that original jurisdiction was warranted because the trial court's suppression of particular statements would “significantly impede the prosecution's case”). Here, the wrongful suppression of evidence pursuant to the psychologist-patient privilege could significantly impede the People's ability to prosecute Kailey, as Willson's testimony constitutes a critical part of the prosecutor's case.

¶ 11 Appellate review would be also be inadequate here because this case raises double jeopardy considerations; specifically, if the People proceed to trial without the benefit of Willson's testimony and Kailey is acquitted, jeopardy will attach and bar his retrial. SeePeople v. Braunthal, 31 P.3d 167, 172 (Colo.2001) (concluding that appellate review of a suppression order would be inadequate because “although the People could appeal the trial court's order suppressing the evidence subsequent to the trial, [the defendant] could not be retried due to double jeopardy considerations”). Accordingly, the exercise of original jurisdiction is appropriate.

III. Standard of Review

¶ 12 Ordinarily, we review the trial court's exclusion of testimony for an abuse of discretion. SeePeople v. Welsh, 80 P.3d 296, 304 (Colo.2003). However, because this case involves the interpretation of the psychologist-patient privilege and its interaction with the duty to warn, both statutory provisions, it presents questions of law that we review de novo. SeeL.A.N. v. L.M.B., 2013 CO 6, ¶ 13, 292 P.3d 942 (reviewing the interaction between the psychotherapist-patient privilege and the dependency and neglect statutes de novo); see also People v. Turner, 109 P.3d 639, 644 (Colo.2005) (reviewing the victim-advocate privilege de novo).

¶ 13 In interpreting statutes, we ascertain and give effect to the legislature's intent—the polestar of statutory construction. State v. Nieto, 993 P.2d 493, 500, 502 (Colo.2000). If a statute is unambiguous, we give effect to the statute's plain and ordinary meaning and look no further. SeeSpringer v. City & Cnty. of Denver, 13 P.3d 794, 799 (Colo.2000). “Although we must give effect to the statute's plain and ordinary meaning, the General Assembly's intent and purpose must prevail over a literalist interpretation that leads to an absurd result.” Lagae v. Lackner, 996 P.2d 1281, 1284 (Colo.2000). Additionally, when interpreting a comprehensive legislative scheme, we construe each provision to further the overarching legislative intent. Martin v. People, 27 P.3d 846, 851–52 (Colo.2001).

IV. Analysis

A. Background

¶ 14 We begin our analysis by noting that statutory privileges are strictly construed, because they contravene the “fundamental principle” that the public has a right to every person's evidence. Petro–Lewis Corp. v. Dist. Court, Fourth Judicial Dist., El Paso Cnty., 727 P.2d 41, 43 (Colo.1986) (quoting Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980)); see also DeSantis v. Simon, 209 P.3d 1069, 1073 (Colo.2009) (noting that because privileges “operate to withhold relevant information from a litigant, we exercise caution in determining whether the claimed protection exists”). Privileges exist as a matter of policy. SeeCRE 501 (noting that “privileges [are] recognized only as provided” and that absent a statutory or constitutional basis, no person has a privilege to, for example, refuse to be a witness, disclose any matter, or produce any object or writing). Ordinarily, relevant, competent, and properly authenticated evidence is admissible, but privileges—by definition—obstruct the search for truth. Kenneth S. Broun, McCormick on Evidence § 72available on Westlaw (updated March 2013) [hereinafter McCormick].

¶ 15 The sacrifice of relevant evidence in the case of testimonial privileges is “warranted by the social importance of [the] interests and relationships that the privilege seeks to protect.” SeePeople v. Sisneros, 55 P.3d 797,...